Re: Tech Writer Lawsuit

Subject: Re: Tech Writer Lawsuit
From: John Hedtke <john -at- hedtke -dot- com>
To: techwr-l -at- lists -dot- techwr-l -dot- com
Date: Wed, 21 May 2008 18:36:11 -0700

It's been interesting watching the discussion
about the Sun lawsuit. In the rush to blame the
STC for not getting involved, there appear to be
a number of things that people are overlooking.

First and foremost, the merits of this case, or
any other case, are not going to be determined by
a few column inches in the news. The causes for
action for any lawsuit must be specific, they
must cite legal precedents, and they are lengthy
and complex. It's not uncommon for the initial
statement of cause for action to run over 100
pages. Furthermore, the language used and, more
importantly, the legal interpretation of that
language is not something that's particularly clear to non-lawyers, either.

Let's say A wants to sue B for something,
anything. The choices of how to craft the causes
for action are many and varied and rely on such
things as the facts of the case, the plaintiff's
preferences, the lawyer's preferences and
recommendations, the statutes that control, the
desired outcomes, the amount of risk involved,
the potential costs, the venue that the action is
being filed in, the case law that affects those
statutes, the corporate law that may affect the
interpretation of the statutes and the case law,
and half a dozen other factors, none of which any
of us can determine from the one article we've seen.

Even from the reporting in the article, there are
clearly a number of different issues that are
going to be complex determinations made through
the discovery process. It is entirely possible
that this particular case could be determined by
the precise interpretation of a given word or
phrase in the controlling statutes, which--and
this may be the surprising part for many
people--could prove to be something completely
different from the labor law that's being quoted
and may not even be California statutes. It works
like that: precedent can be set in what appears
to be a completely unrelated case that links two
seemingly dissimilar things. There's no telling.
In that regard, it would be impossible for the
STC to express any opinion about the case because
we don't even know what the cause of action is,
nor what the merits of the case may be.

Second, who's got "right" on their side? I don't
know. You don't know. The STC sure as hell
doesn't know. Both the plaintiff and the
defendant are presenting mutually exclusive and
potentially equally valid explanations for the
circumstances. Choosing one side over the other
is equally impossible. What if one side's
explanation of the facts is absolutely true and
the other side's is absolutely false? Regardless
of which side it was, it'd be embarrassing for
the STC to have backed that one side over the
other and would be a pile of negative PR, not the
positive PR that we'd like. We could potentially
offend a lot of members or a lot of companies or
(most likely) both all at once. It'd be bad.

Third, even assuming anyone knew who had the
correct statement of the facts, what would
benefit the STC members most? What would be best
course for the STC to follow? As even the limited
discussions on TechWr-L have shown, there is no
agreement about the potential consequences of any
course. People have suggested--with a fair amount
of provenance to their opinions, I might
add--that being exempt is best for writers and
that being non-exempt is best for writers, that
unions are good for writers and that unions are
bad for writers, that the plaintiff has cause for
action and does not have cause for action, that
the defendant has a valid defense and that the
defendant does not have a valid defense, and that
the STC is gutless for saying nothing and the STC
shouldn't get involved and should continue to say nothing.

As the lack of a common viewpoint by a number of
very spirited and articulate participants
demonstrates (some of whom are STC members and
some of whom are not), there isn't any hope that
the STC membership as a whole would come to any
agreement about what to do and how to do it. (Nor
would the Board, I'm quite certain; there are
many diverging viewpoints even in that small a
group.) Nor, based on these same responses, is
there any clear predictor about which course to
support as the ultimate outcome is going to do us
the most good or even the least harm. We haven't
even touched on the idea of how the STC should
try to slice and dice this if an outcome did a
great deal of good for writers at one
salary/experience level but not at another, or if
the outcome benefited writers but shafted graphic
artists­as any lawyer can tell you, all of these
outcomes are possible. The STC could very easily
push for one outcome over another and possibly
even help enact legislation to support that, only
to discover that in practice it was the worst possible thing to have done.

Labor law is a rather sophisticated area of the
law these days. It is not "simple" as some seem
to believe on the list. This case, regardless of
its merits or basis in law, is not "easy." In the
last year , the STC has been doing things at the
US Federal level to improve the definition of
technical communicators in job descriptions,
which hasn't been updated since before most of us
had even started in this field. That, I think
everyone will agree, is a good use of the STC's
energy. The Board is very open to similar ideas
that promote the value of technical communication
and technical communicators. At the level of
specific cases, however, where the merits are
unclear, the facts are unknown, and the outcomes
are impossible to predict, it would be madness
for the STC to leap into the fray just for the
dubious payoff of expressing an uninformed opinion.

As such, the STC is choosing not to express any opinion on the Sun lawsuit.

Yours truly,

John Hedtke
Author/Consultant/Contract Writer <-- website
Region 7 Director, STC
541-685-5000 (office landline)
541-554-2189 (cell)
john -at- hedtke -dot- com (primary email)
johnhedtke -at- aol -dot- com (secondary email)


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